Andhra HC (Pre-Telangana)
General Industrial Society Ltd. vs Industrial Tribunal-Cum-Labour ... on 16 January, 1996
Equivalent citations: 1996(4)ALD509, 1996(2)ALT551, (1997)ILLJ15AP
JUDGMENT
1. This writ petition raises a short but interesting question of law regarding the maintainability of a fresh application under Section 2-A (2) of the Industrial Disputes Act (hereinafter called 'the Act') during the pendency of an earlier reference under Section 10 of the Act in respect of the self-same industrial dispute. The facts leading to the writ petition in brief are as follows :
The petitioner is a company manufacturing jute twine and other allied products. The second respondent herein was employed as a twister in the petitioner's factory at Vizianagaram. On a charge that the second respondent participated in an illegal strike, he was subjected to a disciplinary enquiry and was dismissed from service by an order dated June 17, 1975. The dispute was referred for adjudication by the State Government to the Labour Court, Guntur and the same was numbered as I.D. No. 43 of 1976. The same was, however, dismissed for default on March 14, 1978. The second respondent thereupon filed I.A. No. 77 of 1978 in the Labour Court for restoration of I.D. 43 of 1976 to file by setting aside the order of dismissal for default. As the Labour Court rejected the said application for restoration, the second respondent filed W.P. No. 234 of 1980. By order dated October 26, 1984, this Court allowed the said writ petition and set aside the order of dismissal for default and directed the Labour Court to dispose of the industrial dispute expeditiously according to law within a period not later than three months from the date of receipt of a copy of the order. In the mean time a separate Industrial-cum-Labour Court was constituted at Vishakhapatnam and a number of cases pertaining to Vishakhapatnam region including I.D. No. 43 of 1976 were made over to the Labour Court at Vishakhapatnam from the Labour Court, Guntur. Unfortunately in the process of transferring the records from the Labour Court, Guntur, to the Labour Court at Vishakhapatnam, the records relating to I.D. No. 43 of 1976 were misplaced and lost and they could not be traced in spite of all efforts. As there was no other alternative, the second respondent was advised by the Labour Court to file a fresh application under Section 2A(2) of the Act for his reinstatement and accordingly the second respondent filed a fresh application under Section 2-A(2) of the Act questioning his removal from service and seeking reinstatement with backwages. The petitioner thereupon raised an objection regarding the maintainability of the said application filed by the second respondent. After hearing both parties, the Labour Court, Vishakhapatnam passed an order on April 1, 1989 taking on file the application filed by the second respondent under Section 2-A(2) of the Act leaving all questions open including the question of maintainability of the dispute under Section 2-A(2) of the Act. Pursuant to the said order, the application filed by the second respondent was numbered as I.D. No. 98 of 1989 on file of the Industrial Tribunal-cum-Labour Court, Vishakhapatnam (first respondent). Aggrieved by the said order of the first respondent, the petitioner has filed the present writ petition seeking a writ of mandamus restraining the first respondent from proceeding further with I.D. No. 98 of 1989 and obtained interim stay of all further proceedings in I.D. 2 No. 98 of 1989 pending disposal of the writ petition.
2. The learned counsel for the petitioner has contended that when once there was reference under Section 10 of the Act, it has to be adjudicated and there cannot be a fresh petition under Section 2-A(2) of the Act on the same cause of action, that the application under Section 2-A(2) of the Act is barred by order 2 Rule 2 C.P.C., that if the records are lost, it is the duty of the Labour Court to trace them or to reconstruct them and without doing so, the Labour Court cannot permit the workman to file a fresh application under Section 2-A(2) of the Act, that the petitioner has filed the entire record relating to the domestic enquiry before the Labour Court and grave prejudice will be caused to the petitioner if a de-novo enquiry is to be conducted after the lapse of so many years as it is wellnigh impossible to get evidence, that the petitioner cannot be penalised for the mistake of the Court and that, in any case, the petitioner cannot be mulcted with backwages for the entire period for no fault of the petitioner and that the second respondent is guilty of laches and delay. In support of her contentions, the learned counsel for the petitioner has cited the judgments of the Supreme Court reported in Desh Raj Gupta v. Industrial Tribunal, Lucknow (1991-I-LLJ-120) and in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (1980-I-LLJ-137).
3. On the other hand, the learned counsel for the second respondent has contended that there is no legal bar for entertaining the fresh petition under Section 2-A(2) of the Act, that there is no question of res judicata because there was no adjudication on the earlier reference under Section 10 of the Act, that Section 2A(2) of the Act, confers an independent right on the workman to move the Labour Court directly notwithstanding anything contained in Section 10, that the present application under Section 2-A(2) of the Act can also be treated as a continuation of the earlier reference under Section 10, and that even under Section 10, there is no bar for entertaining more than one reference and that the writ petition has no merit at all and it is filed solely with a view to drag on the proceedings and harass the poor workman. In support of his contentions, the learned counsel for the respondent has cited decisions reported in Detergents India Ltd., Kodur v. The Presiding Officers, Labour Court and others 1993 (1) An. W.R. 219, K. Rama Rao v. The Chief Executive (Mills), Nellimarla Jute Mills and others (1994-II-LLJ-582) (AP), Jai Bhagwan v. Management A. C. Co-op., Bank Ltd., (1984-I-LLJ-52) (SC), State of Maharashtra v. K. E. Union , Orissa Cement Ltd. v. Their Workmen (1960-II-LLJ-91) (SC).
4. There is no controversy about the facts of the case. Admittedly the dispute relating to the removal of the second respondent from service was earlier referred for adjudication under Section 10 of the Act and the same was pending on the file of the Labour Court, Guntur as I.D. No. 43 of 1976. Before the said reference could be adjudicated on merits as directed by this Court in W.P. No. 234 of 1980, the records were lost and they could not be traced. The second respondent was, therefore, obliged to move the Labour Court afresh under Section 2-A(2) of the Act. Sub-section (2) of Section 2-A of the Act was introduced by A.P. Amendment Act No. 32/87 with effect from July 27, 1987 and it reads as follows :
"2-A(2) Notwithstanding anything in Section 10, any such workman as is specified in sub-section (1) may, make an application in the prescribed manner, direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act, and accordingly all the provisions of this Act shall apply in relation to such dispute as they apply in relation to any other industrial dispute".
5. A plain reading of sub-section (2) of Section 2-A of the Act makes it clear that the right conferred by the said sub-section to move the Labour Court directly is independent of and distinct from the discretion vested in the Government to refer an industrial dispute for adjudication under Section 10. Sub-section (2) of Section 2-A of the Act starts with a non-obstante clause that notwithstanding anything in Section 10, it is open to the workman to make an application direct to the Labour Court and on such an application being made, the Labour Court is bound to entertain the same and adjudicate the dispute. The learned counsel for the petitioner, however, seeks to contend that Section 2-A(2) should be so construed as to make it applicable only to such cases where no reference is already pending under Section 10 of the Act. I am afraid this amounts to reading into the said sub-section something which is not there. There is no room for any ambiguity whatsoever in the language employed in sub-section (2) of Section 2-A of the Act. As a matter of fact the very object of introducing sub-section 2 to Section 2-A by A.P. Amendment Act 32/87 is to avoid the delays involved in making a reference under Section 10 of the Act and to enable the workman to directly approach the Labour Court for adjudication. Sub-section (2) of Section 2-A further makes it clear that "On receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the disputes if it were a dispute referred to or pending before it in accordance with the provisions of this Act ...' This shows that an application under sub-section (2) of Section 2-A can be filed even in respect of a dispute which has been already referred to and pending before the Labour Court. The scope and ambit of this provision has been considered by this Court in the decision reported in Detergents India Ltd., 5 Kodur v. the Presiding Officers. Labour Court & others (supra) wherein it has been held that the said Sub-section confers a right on the workman to approach directly the Labour Court for adjudication of the dispute referred to therein without recourse to the Conciliation Officer/Government as was obligatory prior to coming into force of sub-section (2) of Section 2-A of the Act and that these rights are given to the workman notwithstanding anything contained in Section 10 of the Act. It was further held that the application under sub-section (2) of Section 2-A of the Act is maintainable so long as the dispute is existing even though the dispute might have arisen due to dismissal, removal, discharge and retrenchment of the workman earlier to the introduction of the said sub-section and the question of retrospectivity does not arise in such cases. To the same effect is the decision reported in K. Rama Rao v. The Chief Executive (Mills), Nellio maria Jute Mills and others (supra) wherein it has been further held that there is no period of limitation for challenging the order of dismissal before the forum constituted under the I.D. Act and the delay in challenging the order of termination can be taken into consideration for moulding the relief and that in appropriate cases, the court may disallow back-wages from the date of illegal termination till the date of filing of the petition.
6. The learned counsel for the second respondent has placed great reliance on the decision of the Supreme Court in Jai Bhagwan v. Management, A. C. Co-operative Bank Ltd., (supra), in support of his contention that the pendency of the earlier reference under Section 10 of the Act is not a bar for the maintainability of the fresh application under sub-section (2) of Section 2-A of the Act. In that case, the Supreme Court, while dealing with a contention that it is not open to the workman to raise an industrial dispute without exhausting the alternative remedy of appeal, observed that the existence or availability of another remedy is not a bar for raising an industrial dispute and that once a reference has been properly made to an Industrial Tribunal, the dispute has to be duly resolved by the Industrial Tribunal and the Tribunal cannot refuse to adjudicate upon it on the ground that the workman had failed to pursue some other remedy. Though this decision is not directly in point, the above observations lend support to the contention of the learned counsel for the respondent.
7. In State of Maharashtra v. K. E. Union (supra) the Supreme Court upheld the validity of a second reference of a connected dispute made to the Tribunal while the earlier reference was pending adjudication. This decision shows that there can be more than one reference under Section 10 in respect of the same dispute.
8. The two judgments of the Supreme Court cited by the learned counsel for the petitioner i.e., Desh Raj Gupta v. Industrial Tribunal IV, Lucknow and Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (supra) do not throw any light on the present controversy as they deal with the question of back-wages. If ultimately termination of services is held to be illegal, it is always open to the petitioner to put forward all available objections with regard to the grant of backwages by adducing necessary evidence in that behalf.
9. The decision of the Supreme Court in Orissa Cement Ltd., v. Their Workmen (supra) cited by the learned counsel for the second respondent is also not very much relevant for the purpose of the present case as the same dealt with the question whether a finding given by the Industrial Disputes Appellate Tribunal in an earlier proceeding under Section 23 of the I.D. Act operates as res judicata in a subsequent reference made under Section 10 of the Act. It has been observed that the earlier finding of the Appellate Tribunal in the proceeding under Section 23 of the Act was no more than obiter and it cannot he pleaded in support of the bar of res judicata.
10. For the foregoing reasons, I have no hesitation in holding that the application filed by the second respondent under sub-section (2) of Section 2-A of the Industrial Disputes Act is maintainable and that the earlier reference of the same dispute under Section 10 of the Act is not a bar for its maintainability. The learned counsel for the petitioner, however, contends that the earlier reference under Section 10 of the Act i.e., I.D. No. 43 of 1976 which is not finally disposed and which is still pending cannot be simply abandoned or kept in abeyance and it has to be adjudicated finally on merits. I am of the view that the present application under sub-section (2) of Section 2-A can be treated as a continuation of I.D. No. 43 of 1976 on the file of the Labour Court, Guntur and disposal of the present I.D. No. 98 of 1989 on the file of the first respondent should be treated as a final disposal of I.D. No. 43 of 1976 as well.
11. Coming to the question of prejudice to the petitioner on account of the loss of the records and the long lapse of time, it is, no doubt, true that some prejudice is likely to be caused thereby to the petitioner, but on that ground, it is not possible to deny altogether the legal right conferred by sub-section (2) of Section 2-A of the Act on the second respondent. As observed by the Labour Court, the second respondent is not, in any way responsible for the loss of the records. The hardships or prejudice, if any is common to both parties and it will be open to the petitioner to reconstruct the records and to adduce evidence afresh in the enquiry before the Labour Court. I, therefore, see no merit in the writ petition. It is accordingly dismissed with costs.
12. It is a matter of regret that an industrial dispute raised by a poor workman complaining of wrongful termination of services in the year 1975 could not be adjudicated on merits so far whatever be the reasons for the same. The first respondent is, therefore, directed to dispose of I.D. No. 98 of 1989 on merits in accordance with law expeditiously within three months from the date of receipt of a copy of this order.